{"id":198725,"date":"2010-07-01T00:00:00","date_gmt":"2010-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-v-markose-vs-the-deputy-director-of-diary-on-1-july-2010"},"modified":"2015-11-21T23:05:41","modified_gmt":"2015-11-21T17:35:41","slug":"p-v-markose-vs-the-deputy-director-of-diary-on-1-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-v-markose-vs-the-deputy-director-of-diary-on-1-july-2010","title":{"rendered":"P.V.Markose vs The Deputy Director Of Diary … on 1 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.V.Markose vs The Deputy Director Of Diary … on 1 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 10255 of 2010(F)\n\n\n1. P.V.MARKOSE, S\/O.VARGHESE,\n                      ...  Petitioner\n2. JOSE JACOB, VANIYUPURAKKAL HOUSE,\n\n                        Vs\n\n\n\n1. THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT\n                       ...       Respondent\n\n2. NETTITHOZHU KSHEEROLPADAKA SAHAKARANA\n\n                For Petitioner  :SRI.V.G.ARUN\n\n                For Respondent  :SRI.P.C.SASIDHARAN\n\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :01\/07\/2010\n\n O R D E R\n                      K.SURENDRA MOHAN, J\n                       ...........................................\n                    WP(C).NO.10255 OF 2010\n                      ............................................\n            DATED THIS THE 1st DAY OF JULY, 2010\n\n                                 JUDGMENT\n<\/pre>\n
      The petitioner is the President and the second petitioner is one of<\/p>\n
the members of the Managing Committee of the second respondent,<\/p>\n
Society. The Committee of which petitioners are members took charge<\/p>\n
on 31.12.2009. The petitioners were members of the previous<\/p>\n
committee also. The Society is functioning profitably with its area of<\/p>\n
operation spread over Ward Nos.7, 8, 9 and portions of Ward Nos.6,10<\/p>\n
and 11 of Vandanmedu Panchayat.\n<\/p>\n
      2. The Society is functioning from its own building which is<\/p>\n
situate in an extent of land admeasuring 6.5 cents. The office of the<\/p>\n
Society, Milk Collection Centre and Cattle Feed Godown are all<\/p>\n
functioning in the said building. As the building was old and<\/p>\n
dilapidated, the former Committee in office decided to renovate the<\/p>\n
building after obtaining permission from the departmental authorities,<\/p>\n
as per Ext.P1 resolution.\n<\/p>\n
      3. Since there was no Vetenary Hospital in Vandanmedu Grama<\/p>\n
Wpc 10255\/2010                     2<\/span><\/p>\n
Panchayat, there was a persistent demand from the public for starting a<\/p>\n
Vetenary Hospital. It was felt that the functioning of the Vetenary<\/p>\n
Hospital would be beneficial to the members of the second respondent,<\/p>\n
Society also. Though a Vetenary Hospital had been sanctioned by the<\/p>\n
Government, there was no building for using the same. In the above<\/p>\n
circumstances, the Grama Panchayat as well as other Government<\/p>\n
officials requested the second respondent to provide a portion of its<\/p>\n
building for the purpose of housing the newly sanctioned Vetenary<\/p>\n
Hospital. Acceding to the said request, the then Managing Committee<\/p>\n
of the second respondent Society decided to provide a portion of its<\/p>\n
building for housing the Vetenary Hospital. Accordingly, a Committee<\/p>\n
was constituted for the purpose of collecting funds and for starting the<\/p>\n
Vetenary Hospital. The Society accordingly carried out the renovation<\/p>\n
of its building expending an amount of Rs.3,63,298.80 from its own<\/p>\n
funds.\n<\/p>\n
      4. After completion of the renovation, which was conducted<\/p>\n
under the periodic supervision of the authorities, the Vetenary Hospital<\/p>\n
was inaugurated on 9.11.2008, as evidenced by Ext.P2, by the Minister<\/p>\n
Wpc 10255\/2010                        3<\/span><\/p>\n
for Food and Civil Supplies. It is submitted by the petitioner that the<\/p>\n
second respondent Director, Diary Development Department was<\/p>\n
himself among the persons who had felicitated the second respondent<\/p>\n
Society.\n<\/p>\n
      5.    After the present Committee took charge, there were<\/p>\n
differences of opinion with the Secretary of the Society. The Secretary<\/p>\n
started abusing the Committee members in public and his conduct<\/p>\n
finally lead to his suspension. It is alleged that at his instance therefore<\/p>\n
allegations were raised that the Society had expended amounts for<\/p>\n
renovation of the building without proper sanction from the authority<\/p>\n
and that it had accepted the donation of Rs.25,779\/- without sanction<\/p>\n
from the Department. Though the first respondent had issued an order<\/p>\n
on 11.2.2010 requiring the first petitioner to reinstate the Secretary,<\/p>\n
which is Ext.P3, he did not yield to the said request. According to the<\/p>\n
petitioners, the above stand antagonized the first respondent.<\/p>\n
      6. Shortly thereafter, the first respondent issued Ext.P5 asking<\/p>\n
them to show cause why proceedings should not be initiated under<\/p>\n
Section 68 of the Kerala Co-operative Societies Act, 1969( `the Act for<\/p>\n
Wpc 10255\/2010                       4<\/span><\/p>\n
short) and the Rules thereunder. The petitioners submitted their reply,<\/p>\n
Ext.P6 explaining the allegations. On the basis of Ext.P6, the<\/p>\n
petitioners were heard on 17.3.2010. However, as per Ext.P7 order<\/p>\n
which bears the same date, 17.3.2010, the petitioners have been<\/p>\n
surcharged under Section 68 of the Act. As per another order dated<\/p>\n
19.3.2010, the petitioners have also been disqualified under Rule 44(1)<\/p>\n
of the Rules. The petitioners have filed this writ petition challenging<\/p>\n
Exts.P7 and P8.\n<\/p>\n
      7. As per Ext.P7, the amounts spent for revocation is directed to<\/p>\n
be recovered from the eight persons who were the members of the<\/p>\n
Managing Committee at the relevant time. According to the counsel for<\/p>\n
the petitioners, there are absolutely no allegations of misappropriation<\/p>\n
or misutilization of the funds of the Society. The only allegation is that<\/p>\n
the sanction of the authorities were not obtained before expending the<\/p>\n
amount for renovation of the building. In view of the fact that there are<\/p>\n
no circumstances justifying invocation of the power under Section 68<\/p>\n
present, there is absolutely no justification for the issue of Exts.P7 and<\/p>\n
P8 in the present case. The counsel for the petitioner places particular<\/p>\n
Wpc 10255\/2010                      5<\/span><\/p>\n
reliance on the decision of this court by which it has been held that<\/p>\n
unless the specific conditions stipulated by Section 68 are present,<\/p>\n
invocation of the power under the said provision is not justified.<\/p>\n
Therefore, the counsel prays for quashing Exts.P7 and P8.<\/p>\n
      8.   As per    order in I.A.No.4669 of 2010, additional third<\/p>\n
respondent, the person who had made the complaint, referred to in<\/p>\n
Ext.P7, has got himself impleaded. The additional third respondent has<\/p>\n
filed a counter affidavit justifying Exts.P7 and P8 proceedings.<\/p>\n
According to the additional third respondent, Ext.P7 is an order issued<\/p>\n
after hearing the affected parties. It has been found in Ext.P7 that an<\/p>\n
amount of Rs.3,63,298.80 has been misappropriated from the general<\/p>\n
funds of the Society and therefore an order of surcharge has been<\/p>\n
passed on the petitioners. According to the additional third respondent,<\/p>\n
even the amounts spent without sanction of the authorities, are amounts<\/p>\n
misappropriated. The only funds that a Co-operative Society can spend<\/p>\n
without sanction of the authorities, are amounts for which provision<\/p>\n
has been made in the budget adopted by the General Body of the<\/p>\n
Society. Therefore, any amounts expended without budgetory<\/p>\n
Wpc 10255\/2010                        6<\/span><\/p>\n
provision would have to be with prior special sanction obtained by the<\/p>\n
competent authorities. In the present case, it is submitted that amounts<\/p>\n
were spent without budgetory provision and the construction itself was<\/p>\n
undertaken without any sanction from the PWD. Therefore, it is<\/p>\n
pointed out that the action initiated is perfectly justified.<\/p>\n
      9.   The learned Senior Government Pleader, K.C.Santhosh<\/p>\n
Kumar pointed out that the order Ext.P7 being one issued under<\/p>\n
Section 68 of the Act, is appealable under Section 83(1)(e) of the Act.<\/p>\n
Therefore, it is submitted that the petitioner is not entitled to challenge<\/p>\n
this order in this writ petition. It is also submitted that considering the<\/p>\n
gravity of the allegations raised against the petitioners, the impugned<\/p>\n
orders Exts.P7 and P8 are perfectly justified. It is also pointed out that<\/p>\n
Ext.P7 was issued after hearing the petitioners and that no opportunity<\/p>\n
for any further hearing is contemplated by the Act or Rules. Since the<\/p>\n
impugned orders were issued after considering all the contentions of<\/p>\n
the petitioners, it is submitted that the orders are justified both in law<\/p>\n
and fact. Therefore, he prays for the dismissal of this writ petition.<\/p>\n
      10. I have heard Adv.Sri.V.G.Arun, who appears for petitioners,<\/p>\n
Wpc 10255\/2010                     7<\/span><\/p>\n
Sri.K.C.Santhosh     Kumar,    learned    Government      Pleader   and<\/p>\n
Adv.P.C.Sasidharan, who appears for the third respondent, in detail. I<\/p>\n
have gone through the facts of the case and have considered the rival<\/p>\n
contentions of the parties.\n<\/p>\n
      11. The petitioners are the only two members of the present<\/p>\n
Managing Committee who have been proceeded with under Section 68<\/p>\n
of the Act. This writ petition is filed by them. According to the<\/p>\n
petitioners, as per the decisions reported in A.K.Francis V. Joint<\/p>\n
Registrar<\/a> (1990(2) KLT 470), it has been held as follows:-<\/p>\n
         “The first requirement of the section, which<\/p>\n
         constitutes the condition precedent for its<\/p>\n
         operation, is that the payment contemplated or<\/p>\n
         the deficiency in the assets of the society should<\/p>\n
         have been found in the course of audit, inquiry,<\/p>\n
         inspection or the winding up of the society. The<\/p>\n
         section can be invoked by the Registrar only if<\/p>\n
         the finding was made in this manner and not<\/p>\n
         otherwise”.<\/p><\/blockquote>\n
      12. With reference to Ext.P7, it is pointed out by the counsel for<\/p>\n
the petitioner that in the present case, the proceedings are initiated<\/p>\n
Wpc 10255\/2010                       8<\/span><\/p>\n
pursuant to a complaint made by the additional third respondent cited<\/p>\n
as reference No.1 therein. Since the preliminary conditions required for<\/p>\n
initiating proceedings under Section 68 are absent, it is submitted that<\/p>\n
there is no illegal payment or deficiency in assets that has been found<\/p>\n
in the inspection that was conducted. What has been found is only that<\/p>\n
money was expended without previous sanction, which is not<\/p>\n
sufficient for initiation of action under Section 68. The counsel for the<\/p>\n
petitioners also complain that no opportunity of being heard was<\/p>\n
afforded before issuing Ext.P8 disqualifying the members.<\/p>\n
       13. As rightly pointed out by the learned Senior Government<\/p>\n
Pleader, Ext.P7 is an order against which a remedy by way of appeal<\/p>\n
has been specifically provided by Section 83(1)(e) of the Act. Since the<\/p>\n
petitioners have an alternative and effective remedy for challenging<\/p>\n
Ext.P7, it is sufficient that they are relegated to the said remedy.<\/p>\n
Therefore, I do not venture to consider the contentions raised on behalf<\/p>\n
of the petitioners on the merits.\n<\/p>\n
       14. Ext.P8 order has been passed three days after the issue of<\/p>\n
Ext.P7. As per Ext.P8, the petitioners have been disqualified to be<\/p>\n
Wpc 10255\/2010                     9<\/span><\/p>\n
members of the committee under Rule 44(1)(l) of the Co-operative<\/p>\n
Societies Rules, 1969(`the Rules’ for short). It is the case of the<\/p>\n
petitioners that they were not heard before Ext.P8 order was passed.<\/p>\n
The learned Senior Government Pleader as well as the counsel for the<\/p>\n
additional third respondent submits that the disqualification suffered<\/p>\n
by the petitioners was a consequence of being surcharged under<\/p>\n
Section 68 of the Act. Therefore, immediately on being surcharged<\/p>\n
under Section 68, the disqualification under Rule 44(1)(l) takes effect,<\/p>\n
without there being any further proceedings to declare such<\/p>\n
disqualification. Since the petitioners were disqualified, even in the<\/p>\n
absence of Ext.P8, issuance of the said order does not in any way affect<\/p>\n
the said legal position one way or the other. Therefore, it is submitted<\/p>\n
that there was no necessity of the petitioners being heard before the<\/p>\n
issuance of Ext.P8. The counsel for the petitioner places particular<\/p>\n
reliance on the decision in T.P.Paulose V. Joint Registrar<\/a> (1993(2)<\/p>\n
KLJ 36).\n<\/p>\n
      15. It cannot be disputed that the petitioners are persons who<\/p>\n
were qualified to be members of the Managing Committee as on the<\/p>\n
Wpc 10255\/2010                      10<\/span><\/p>\n
dates on which they were elected to the said posts. Having been<\/p>\n
eligible members, they could be disqualified from holding the said post<\/p>\n
only when they are disqualified in accordance with the provisions of<\/p>\n
Rule 44 of the Rules. Therefore, the disqualification of the petitioners<\/p>\n
cannot be considered to be automatic on the issue of surcharge<\/p>\n
proceedings under Section 68 of the Act. A further declaration that he<\/p>\n
was ceased to be a member of the Committee of the Society is<\/p>\n
necessary for the said purpose. The said declaration can be issued<\/p>\n
under Rule 44(3) of the Rules. It is the said declaration that has been<\/p>\n
made as per Ext.P8 proceedings. However, before any such<\/p>\n
proceedings is issued under the said provision, it is mandatory that an<\/p>\n
opportunity to state his objections against the proposed action should<\/p>\n
be given to the said person. In the present case, nobody has a case that<\/p>\n
any such opportunity of hearing was given to the petitioners. Since a<\/p>\n
hearing is mandatory under Section 44(3) of the Act,             Ext.P8<\/p>\n
proceedings cannot be sustained. For the above reason alone, Ext.P8 is<\/p>\n
unsustainable and is liable to be set aside.\n<\/p>\n
      16. In the above circumstances, the impugned proceedings<\/p>\n
Wpc 10255\/2010                      11<\/span><\/p>\n
Ext.P8 are quashed. However, the first respondent would be at liberty<\/p>\n
to initiate fresh action against the petitioners under Rule 44(3) of the<\/p>\n
Rules, if circumstances insist such action. The petitioners shall be at<\/p>\n
liberty to challenge Ext.P7 proceedings by filing an appeal against the<\/p>\n
same under Section 83(1)(e) of the Act. If such an appeal is filed<\/p>\n
within ten days of receipt of a copy of this judgment, the same shall be<\/p>\n
entertained without any objection as to limitation, treating the period<\/p>\n
during which this writ petition has been pending before this court as<\/p>\n
time spent pursuing the other legal remedies and such appeal shall be<\/p>\n
considered and disposed of in accordance with law, on merits.<\/p>\n
      Writ petition is disposed of as above. No costs.\n<\/p>\n<\/p>\n
                                    K.SURENDRA MOHAN, JUDGE<\/p>\n
lgk<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.V.Markose vs The Deputy Director Of Diary … on 1 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 10255 of 2010(F) 1. P.V.MARKOSE, S\/O.VARGHESE, … Petitioner 2. JOSE JACOB, VANIYUPURAKKAL HOUSE, Vs 1. THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT … Respondent 2. NETTITHOZHU KSHEEROLPADAKA SAHAKARANA For Petitioner :SRI.V.G.ARUN For […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-198725","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.V.Markose vs The Deputy Director Of Diary ... on 1 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-v-markose-vs-the-deputy-director-of-diary-on-1-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.V.Markose vs The Deputy Director Of Diary ... on 1 July, 2010 - 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